Hauss v. Lake Erie & W.R. Co.

• Decision Date: 14 January 1901
• Docket Number: 831.
• Citation: 105 F. 733
• Parties: HAUSS v. LAKE ERIE & W.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

105 F. 733

HAUSS v. LAKE ERIE & W.R. CO.

No. 831.

United States Court of Appeals, Sixth Circuit.

January 14, 1901

The evidence shows that on the 10th day of June, 1898, at Muncie Ind., the plaintiff's intestate, William V. Doty, a brakeman in the defendant's service, while coupling cars received injuries of which he died within a few hours. At the time of his death he was in the twenty-fourth year of his age, and had been in the service of the defendant, as a brakeman, for about 18 months. He was employed on a freight train which passed daily over defendant's railroad between Tipton, Ind., and Lima, Ohio; and on the day of the accident his train came east, with eight cars, for Muncie which were to be detached from the train and left at that place. For 10 days or 2 weeks next before the accident the defendant had been constructing two new switches near the place of the accident, and on that day the work was still in progress. Just before the arrival of Doty's train several cars carrying gravel to ballast the new tracks had been unloaded near the place of the accident, and were standing on a storage track, on which the Muncie cars from Doty's train were to be placed, and, it being necessary to move them out of the way, the cars from Doty's train were backed in, to be coupled to them; and while the cars from Doty's train were backing, and while Doty was walking inside of the track behind them, keeping pace with their movement, his right foot was caught and held in an unblocked frog until they backed over him, causing the injuries of which he died. It was the usage and practice of the defendant to keep the frogs in its line of railroad blocked, but this particular frog was a part of the new construction, and had not been blocked because it was not practicable to block it until the tracks were ballasted and the alignment of the rails of the new switches with the alignment of the rails of the frog was perfected. The accident occurred about 11 o'clock of the forenoon, and the day was bright and clear, and there was nothing to obstruct the view of the track. During the 10 days or 2 weeks during which the new construction had been in progress, Doty passed by it daily, going east and west with his train. A bulletin which reads as follows:

"Sent to Time Sent Sender Receiver

Po n

pd 7:37 p. m. B Tn

Gx n Gy

From 5/30th 1898.

To all Cond Rd

All Trains East Gx

West Po "Digging is being done between ties around Muncie yard office, and quarter mile west of yard office. Look out for it, and don't get injured.

S. R. K."

-- was put on the train register in the yard office at Muncie, to which all trainmen had access, and it remained there until the work was completed. The conductor of Doty's train testified in chief concerning this bulletin as follows: 'Q. Explain to the court and jury how those bulletins were handled, with relation to trainmen? A. They manifolded, eight or ten taken on manifold paper at a time; and each train going through Muncie, the conductor got them and showed them to the trainmen, to all concerned in the matter, to look out for new work being done at Muncie. Q. I will ask you if you received a copy of this message, which is marked 'Exhibit No. 2,' at Portland on the 9th, and also at Alexandria on the 10th? A. Yes, sir; that is a copy of it. Q. What is meant by 'Gx'? A. The station at Alexandria. Q. And 'Po'? A. Portland. Q. 'S. R. K.'? A. S. R. Kramer. Q. What did you do with this bulletin after you got it, so far as Mr. Doty was concerned? A. I told Mr. Doty about it, and showed it to him. He read it and handed it back to me. Q. Which one? A. The one at Portland, going west, and the one at Alexandria, going east. Q. You showed him the one at Portland on the 9th? A. Yes, sir. Q. And the one going east on the 10th at Alexandria? A. Yes, sir. Q. How often during the continuance of this work were these bulletins handed to trainmen? A. Every train that went in either direction, every day and night, as the case might be. ' And on cross-examination further testified: 'Q. You knew that this bulletin you had did not say anything about unblocked frogs, but to look out for digging that was being done at Muncie? A. Yes, sir. Q. That was the only bulletin you had, was it? A. Yes, sir. ' Upon this state of fact, the plaintiff complained that the injuries of which Doty died were caused by the negligence of the defendant in failing to block the frog in which his foot was caught, in accordance with its established usage and practice. But the defendant contended that, as it was neither usual nor practicable to block the frog during the progress of the work, it owed no duty to Doty in respect thereto, other than to notify him that the work was being done, and to warn him of the danger incident to the use of the track while it was in progress, and alleged that it did so notify and warn him, and that his injuries, therefore, were not caused by any fault on its part. On the trial before a jury at the close of the evidence the trial judge sustained the contention of the defendant, and directed a verdict in its favor.

Henry W. Seney, for plaintiff in error.

Charles T. Lewis, for defendant in error.

Before DAY and SEVERENS, Circuit Judges, and THOMPSON, District Judge.

THOMPSON District Judge, after stating the case as above, .

We agree with the learned judge who presided at the...